American Gun Laws – Time for a Change!

American Gun Laws – Time for a Change!

I woke up this morning and saw a video on Facebook of the faces of the victims of the Las Vegas shooting.   As I watched the faces and thought about the tragic loss, I felt immensely sad, angry and sick.   I reflected on the fact that I have walked those streets with my own children, and that the gorgeous woman that I love regularly travels to Las Vegas and other parts of the USA for work. 

We have all seen the statistics on mass shootings in the USA and they are truly sickening. 

Did you know that on the day of the Las Vegas Shooting there was another mass shooting in the USA?  In Lawrence, just outside the University of Kansas, two men and a woman were killed, and a further two people injured, in a mass shooting incident. If this had occurred in Australia, it would have been front page news. But in the USA, incidents like this seem to have become almost non-newsworthy.

When incidents like this occur, Australians again are puzzled by the American Gun Laws and why nobody seems to be doing anything about it. As a lawyer, I have looked at this after previous mass shooting incidents. Here are my views on the law.

The Second Amendment

We’ve all heard Americans talk about their Second Amendment right to bear arms.  This amendment to the United States Constitution reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Second Amendment was adopted as part of the Bill of Rights on 15 December 1791.  This was only 15 years after the Declaration of Independence by United States (severing ties with the British Empire).  It was a time when:

  • The country was young and where it lacked the resources for a proper military.
  • Presumably, there was still a concern that the British Empire (or some other foreign power) would seek to take back the country.
  • Importantly, the “arms” of the time were vastly less powerful.  They were single-shot muskets, which had to be manually loaded with powder and ball for each shot.

What strikes me about the Second Amendment is that it appears to give a right to bear arms as part of a well regulated Militia.  Not a right to bear arms individually and absolutely.

Does my Argument Have Merit?

I am not the first person to make this argument, so it clearly has some merit.    

Some scholars in the USA point to the introductory words of “a well regulated Militia” to argue that the framers of the Amendment intended only to restrict Congress from legislating away a state’s right to self-defence.  Scholars have come to call this theory “the collective rights theory.”

A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

In 1939, the US Supreme Court considered the matter in United States v Miller. The Court examined the legality of the National Firearms Act, which sought to regulate sawn-off shotguns.  In doing so, the Court adopted the collective rights approach, determining that the regulations did not violate the Second Amendment and were legal.  In doing so, the Court found that the evidence did not support the view that the shotgun “has some reasonable relationship to the preservation or efficiency of a well regulated militia”.  The Court explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

The debate still continued, with opponents of the decision continuing to argue the right of the people to keep and bear Arms creates an individual constitutional right for citizens of the United States.  Under this “individual right theory”, any substantive prohibition would be unconstitutional.

Where Did it All Go Wrong?

In 2008, the US Supreme Court revisited the issue in District of Columbia v. Heller.  In a 5-4 decision, the Court proclaimed that the Second Amendment established an individual right for US citizens to possess firearms and found the District of Columbia’s handgun ban was illegal for violating the Second Amendment.

The Court did not absolutely overrule the earlier Miller decision.  The Court did recognise that there were restrictions on Second Amendment Rights, holding:

  • United States v. Miller … does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes…
  • It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose:   For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.  The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

This 2008 decision seems to me to have been a real turning point.  On any view, it was a split vote.  Just pause to think about how much safer the USA would be now if just one of the majority judges had voted differently!

But even with this decision, it seems to me that the US law makers still have power to make laws restricting the availability of high power weapons.  Surely these are within the Miller exception that the Court recognised!

More Recent Decisions

In 2010, in McDonald v. City of Chicago, the US Supreme Court (once again in a 5-4 decision) found the Chicago handgun laws (which prohibited handgun possession by almost all private citizens) to be unconstitutional.

In 2016, in Caetano v. Massachusetts, the US Supreme Court found that the prohibition against the personal possession and use of a stun gun offended the Second Amendment. The Court held that, although stun guns are unusual in nature and were not common during the enactment of the Second Amendment, they are included in the Second Amendment’s protections.  With the greatest respect to the judges, I simply don’t get it!

So Where to Now?

As Australians, we could simply sit back and say that it is not our problem. But frankly, it is our problem!  

The world is becoming a smaller place. We all have loved ones who, at some point, will visit the USA. Whilst we can’t live our lives in fear, I don’t want one of my loved ones being a USA mass shooting statistic. Frankly, I don’t want to keep waking up to media reports of anyone’s loved ones being a victim of these awful crimes.

I’m sick of hearing the excuse that “guns don’t kill people, people kill people”. Whilst this is strictly true, restricting the right to high power weapons would make it so much harder for people to kill people.

Does anyone else see the hypocrisy in the US President’s current stand on seeking to disarm North Korea? Seeking to take away an independent country’s weapons of mass destruction, whilst at the same time refusing to impose similar restrictions on his own citizens’ rights to possess and use weapons of the type used in Las Vegas. I call hypocrite!

Be Brave!

The National Anthem of the USA describes their country as “the land of the free and the home of the brave!”  Whilst the gun lobbyists focus on freedom, I urge the US people (in particular, the law makers and lawyers) to focus on being “brave”:

  • Be brave enough to make laws restricting the possession and use of weapons!
  • Be brave enough to fight in the US Supreme Court to defend those laws!
  • And if a law is struck down, be brave enough to re-frame it and fight again!

And frankly, be brave enough to repeal (or substantially change) the Second Amendment itself!

The US Constitution can be re-written – it is not set in stone. For example, the 18th Amendment prohibited the manufacture, transport and sale of alcohol. This was repealed by the 21st Amendment, arguably as a result of widespread public disillusionment with prohibition.

Whilst changing the US Constitution is a hard process, nothing worthwhile and truly world changing is ever easy.  In the words of George Washington, the 1st US President and one of the Founding Fathers:

“The harder the conflict, the greater the triumph”.

So from an Australian lawyer who is saddened at, and sickened by, the continual loss of life… I say:

“Please America… It’s time to stand up, be brave and make a change!”

Ross Mason
Ross Mason

3 Aug, 2021

The information in this article is intended to provide general information only and does not constitute legal advice. If you require legal advice specific to your particular circumstances, you must formally engage a lawyer or law firm. The law is subject to change, and whilst we strive to keep our content up-to-date, developments may occur after publication. The information contained on our website should not be relied upon or used as a definitive or complete statement of the relevant law. Mason Lawyers takes no responsibility for any use of the information provided. Liability limited by a scheme approved under Professional Standards Legislation.

Recent posts